Hobbs v. Beckwith. terial in good faith furnished for the purpose of erecting or repairing a house in pursuance of an agreement with the owner, notwithstanding a part of the material may subsequently be otherwise appropriated without the consent of the party furnishing it. The $200 payment, which was made generally on the entire account, must be considered as paid in discharge of the earlier items. 11 E. C. L. 36. The lien of the remaining items will attach to the *several [252 buildings and lots, for the use of which they were respectively furnished. As the case is not in a condition for final decree, and a further reference to a master will probably be necessary, it will be remanded to the district court for further proceedings and final decree, in accordance with the principles above stated. BARTLEY, C. J., and SWAN, BRINKERHOFF, and BowEN, JJ., concurred. JOHN HOBBS v. MARGARET BECKWITH. WRIT of certiorari to the district court of Knox county. On the 9th of August, 1852, Margaret Beckwith, the defendant in certiorari, made a complaint in bastardy against John Hobbs, the plaintiff in certiorari, before a justice of the peace of Knox county. Proceedings were regularly had under said complaint, and at the November term, 1852, of Knox common pleas, a trial of said case was had, in which the jury failed to agree. The case was subsequently continued until the August term, 1853, at which time plaintiff in certiorari, on leave, withdrew his plea of "not guilty," and filed a motion to dismiss the proceedings, assigning as cause therefor: 1. That the complaint of the said Margaret is not within the statute. 2. That the said Margaret having made complaint, in accordance with the provisions of the statute, against G. *W. Stahl, as [253 the father of her bastard, she is estopped from making complaint gainst John Hobbs, as the father of the same child. VOL. VI-13 193 Hobbs v. Beckwith. In support of this motion, counsel for plaintiff in certiorari gave in evidence the complaint made by the said Margaret Beckwith before Justice Cochran, on the 7th day of August, 1852, charging George W. Stahl to be the father of her child, and also sundry depositions. To resist this motion the said Margaret gave in evidence her affidavit, made on the 9th of August, 1852, before Justice Cotton, charging said Hobbs as being the father of said child, the examination thereunder, and also sundry depositions. It was also admitted, on the hearing of the motion, that the affidavit against Stahl was left in possession of the attorney for the defendant in certiorari, immediately upon its being made, to enable him to settle said complaint, if practicable, and continued in his possession, and no proceedings of any kind were ever had upon said accusation against said Stahl. The motion to dismiss was overruled; whereupon, plaintiff in certiorari excepted to the ruling and judgment of the court, and removed the case, upon certiorari, to the district court of Knox county, and at the May term, 1855, of said court, the case was again heard, and the judgment of the common pleas affirmed. The plaintiff now brings the case into this court, a certiorari having been allowed by one of the judges thereof during vacation. Samuel Israel, for plaintiff in certiorari. Curtis & Scribner, for defendant. BARTLEY, C. J. The writ of certiorari being abolished by the 254] *code of civil procedure, a final judgment or order in proceedings under the act for the maintenance and support of llegitimate children, must be reviewed on petition in error, instead of certiorari. The provision of the code excepting from its operation proceedings under the bastardy act, has reference to proceedings under that act strictly, and not to proceedings to review them on error. An order in the progress of a suit, and before judgment, to be final and lay the foundation for petition in error, must be such as determines the action and prevents a judgment. Dismissed at the cost of plaintiff in certiorari. SWAN, BRINKERHOFF, BOWEN, and SCOTT, JJ., concurred. 194 Union Bank of Rochester v. Union Bank of Sandusky. THE UNION BANK OF ROCHESTER V. THE UNION BANK OF SAN DUSKY. In proceedings in aid of execution, under the 464th section of the code, a debtor of the execution debtor, against whom an order of the judge is issued, can not, after the service of the order, discharge himself from the proceeding by payment to the execution debtor of his indebtedness-the service of the order having the effect of lis pendens. An order requiring A, president of the Union Bank, and B, cashier, to testify as to any indebtedness of the bank to C, without otherwise naming the bank, or indicating otherwise the object of the order, does not make the bank a party to the proceeding. A judge can not, under the 467th section of the code, enforce the payment of a debt, in the absence of all fraud, by imprisonment as for a contempt, but may direct the application of the proceeds of the debt, when collected by the receiver, or otherwise. *PETITION in error to reverse the judgment of the court of [255 commom pleas of Erie county. The plaintiff in error recovered a judgment in the Cuyahoga common pleas, against the Sandusky, Mansfield and Newark Railroad Company and others. The principal office of this company being at Sandusky city, and the railroad company being the principal debtor, an execution was issued on the 8th day of March, 1855, and sent to the sheriff of Erie county. Finding no property. whereon to levy, the plaintiff, on the 7th of April following, instituted proceedings in aid of execution before the probate judge of that county, for the purpose of reaching money in the hands of the defendant, the Union Bank of Sandusky, belonging to the railroad company. For this purpose the following affidavit was made and filed with the probate judge: "Homer Goodwin, of lawful age, being sworn by me, says that he is the lawful attorney of the Union Bank of Rochester, which bank is a lawful corporation, existing as such by the laws of the State of New York, and as such corporation the said bank recovered a judgment in the court of common pleas of Cuyahoga county, and State of Ohio, at a term of said court commencing on the 15th day of February, A. D. 1855, for the sum of nineteen hundred and seventy-six one-hundredths dollars, against the Sandusky City Bank, The Sandusky, Mansfield and Newark Railroad Company, Union Bank of Rochester v. Union Bank of Sandusky. John R. Robinson, superintendent, and others. And on the 8th day of March, A. D. 1855, an execution was duly issued out of said court on said judgment, to the sheriff of Erie county, Ohio, which was the sheriff of the county where said Sandusky City Bank is located, and where the principal office of business of said railroad company is also located, and where the said Robinson, superintendent, for the most part, resides; said execution com256] manding said *sheriff, that of the goods and chattels of the said defendants found in his bailiwick, he cause to be made the said judgment, together with damages and costs; and for want of goods and chattels, then that he cause said amount to be made of the lands and tenements of the said Sandusky City Bank, The Sandusky, Mansfield and Newark Railroad Company, J. R. Robinson, superintendent, and Ansel Roberts, impleaded, etc. And affiant further says, that the said judgment debtors, the Sandusky City Bank, said railroad company, J. R. Robinson, superintendent, have not personal or real property subject to levy on execution, sufficient to satisfy the aforesaid judgment; but that the said Sandusky, Mansfield and Newark Railroad Company (which is the principal debtor in said judgment, and which ought to pay it in preference to the others of said defendants) has money in the Union Bank of Sandusky, a body corporate, situate in said Sandusky, which money ought justly to be applied in the payment of said judgment; and that said Union Bank, a corporation aforesaid, is indebted to said railroad company, in about the sum of three thousand dollars, as affiant is informed and believes, by way of a deposit of money with said bank last mentioned, which stands to the credit of said railroad company on the books of said bank; and further deponent saith not. Homer Goodwin. Sworn to, etc., on the 7th of April, 1855." The probate judge entered upon his journal the following order: "On motion to the court by H. Goodwin, Esq., attorney for plaintiff, and it appearing to the satisfaction of the court by affidavit of H. Goodwin, that the Union Bank of Rochester has recovered a judgment in the court of common pleas of Cuyahoga county, Ohio, at the February term thereof, against the Sandusky, 257] Mansfield and Newark *Railroad Company and others, for the sum of nineteen hundred and eighteen dollars and fifty cents, and eight dollars and twenty-six cents costs; and that said railroad company has no personal or real property subject to levy on Union Bank of Rochester v. Union Bank of Sandusky. execution, and that the Union Bank of Sandusky, a corporation, is indebted to the said railroad conpany in about the sum of three thousand dollars, it is ordered that an order issue, requiring F. T. Barney, the president, and G. W. Weston, the cashier of said Union Bank of Sandusky, to appear and answer on oath concerning the same, on Monday, the 9th day of April, A. D. 1855, at nine o'clock in the morning on said day; and it is further ordered, that the plaintiff notify the said railroad company of the matters herein, so as to give them or one of their officers sufficient time to be present at such examination. "ABRAHAM H. STRYKER, Probate Judge." The probate judge issued to the sheriff a notice, under the four hundred and sixty-fourth section of the code, as follows: "THE STATE OF OHIO, ERIE COUNTY, SS. "To the Sheriff of the County of Erie, greeting: "You are hereby commanded to notify F. T. Barney, the president, and G. M. Weston, the cashier of the Union Bank of Sandusky, to be and appear before the judge of the probate court, at the court-house in said county, on the 9th day of April, a. D. 1855, at nine o'clock, forenoon, then and there to answer on oath concerning the indebtedness of said bank to the Sandusky, Mansfield and Newark Railroad Company; and this they shall in no wise omit; and have you then and there this writ.. "Given under my hand, and the seal of said court, at the courthouse in the city of Sandusky, said county, this 7th day of April, A. D. 1855. [SEAL.] "ABRAHAM H. STRYKER, "Judge of the Probate Court." Upon this notice the sheriff made the following return: "I served this writ by delivering copies thereof to the within- [258 named Barney and Weston, on the 9th day of April, 1855. Barney, the president, and Weston, the cashier of the bank, appeared on the 9th, in pursuance of the notice, and answered (and their answers were reduced to writing), in substance, that at the time the notice was served upon them, the assistant treasurer of the company had on deposit in the bank the sum of $3,825; that after the service of the notice they had paid on the check of this assistant treasurer the sum of $3,800; leaving but $25 to his credit; and the assistant treasurer stated that he drew the money after notice was served upon Stockwell, the president of the company, who directed |